The following article was written by the Equality Coalition, following a Workshop entitled Challenging the Cuts which was jointly organised by the Equality Coalition and the PILS Project.
In the current economic climate, the spending cuts and reduction in public services often have a disproportionate impact on disadvantaged groups. Community and voluntary sector organisations are working to protect their constituents from these impacts, and have developed diverse strategies with varying levels of success. In order to consolidate this learning, facilitate mutual support and build capacity among the sector, the Equality Coalition and the PILS Project are running two events focusing on ‘Challenging the Cuts’.
The first event took place on 2 February 2012 as a workshop for members of the Equality Coalition and the PILS Project Stakeholder Forum. The aim of the workshop was to highlight legal avenues for challenging cuts, offer the opportunity for participants to discuss how the cuts were affecting their constituents and share their experience on challenging the cuts.
Patricia McKeown, of UNISON (co-convener of the Equality Coalition), began the workshop by setting out the context of the spending cuts and highlighting the disproportionate impact of the existing and incoming cuts on the most vulnerable in society, who are most likely to use public services. Patricia also explained that equality and human rights considerations need to be prioritised by public bodies when they are implementing budget cuts and cuts to services, and that equality and human rights mechanisms can be used to challenge such cuts.
Public Sector Equality Duties
Following on from this, Debbie Kohner, of CAJ (co-convener of the Equality Coalition), presented on the role of section 75 of the Northern Ireland Act 1998 (‘s75’) in challenging the cuts. Debbie explained that, as s75 requires public authorities to have due regard to the need to promote equality of opportunity when carrying out their functions, they must consider the impacts of any spending cuts on the nine named equality groups. This can be enforced through the Equality Commission for Northern Ireland’s (‘ECNI’) complaints mechanism or, to a limited extent, by judicial review. She then set out practical tips for each of these approaches.
The ECNI complaints mechanism relates directly to each public authority’s equality scheme, which is required to show how the s75 duty will be fulfilled, including an assessment of equality impacts. If any of the commitments in the equality scheme has not been carried out in practice, then a directly affected person can make a complaint or anyone can inform the ECNI, which could trigger an investigation. Despite limited enforcement powers, the ECNI can put pressure on the public authority concerned to apply the equality scheme in full, which could result in a different policy decision being reached.
Debbie explained that the courts have found judicial review to be a limited remedy for s75, due to the parallel ECNI complaints mechanism. However, judicial review is still possible, and she set out the principles developed by the many cases on the public sector equality duties (‘PSED’) in Great Britain, which would apply to s75. Debbie also reviewed the application of the PSEDs to spending decisions, given that the courts are traditionally reluctant to interfere with public expenditure. She confirmed that several judgments do show the courts’ willingness to send spending decisions back to local authorities where the PSED has not been fulfilled, and set out the common principles from these cases.
Public Interest Litigation
Melissa Murray, Project Manager and Solicitor with the PILS Project, then explained the role of public interest litigation (PIL) in cuts cases. PIL can be valuable when one or more groups are affected by an issue, such as a spending cut, as the outcome can impact on a large group of people, not just the individual litigant concerned.
The strategic use of PIL can raise public awareness around an issue and put pressure on public authorities to meet their obligations. It can also support ancillary work and allow for a strategic use of resources, particularly when groups work collaboratively. Melissa outlined the legal grounds for challenging budgeting decisions, including judicial review and its potential remedies. Participants were reminded that judicial review could only be used as a last resort. However, once alternative remedies have been exhausted, action should be taken as soon as possible.
Melissa explained the importance of keeping records, gathering evidence and obtaining legal advice as soon as possible once an issue emerges. In this regard, members of the PILS Project’s Stakeholder Forum can avail of the support it offers. Even if not taking the case, NGOs can participate as a third party intervener, through a witness statement or through campaigning and lobbying work, which can be essential in strategic litigation. Melissa also underlined the risks and obstacles inherent to PIL and stressed the importance of having a clear aim and considering in advance the range of potential impacts, both positive and negative, of a perspective the case.
The NGO perspective
Participants then had the opportunity to discuss current cuts related issues of concern to their organisations. The discussions exposed the synergies between groups and the overlap (and multiple identities) of issues of concern to them. It was also highlighted that service reduction was not always described as a spending cut, where the same or more resources were stretched to provide for a wider group of individuals.
The groups also discussed their diverse approaches to influencing policies in order to mitigate the cuts. The participants’ action included campaigning, giving evidence to Assembly Committees, lobbying, direct meetings and communications, training, the use of media, and legal action. It was identified that the most successful approaches to challenging the cuts were multi-pronged, encompassing many of the methods listed above, and also multi-partied, through joining with other groups for the most efficient use of resources and maximum impact, or simply through gaining public support.
The groups agreed on the need to raise public awareness, work collectively on challenging the cuts and share information and evidence from the different sectors to demonstrate the impact that policies are having collectively and on various groups. There was also a desire to develop ‘bottom-up’ work through engaging more with individuals directly affected by the cuts. Organisations underlined the advantages of being proactive, by highlighting to public authorities the resource efficient ways of benefiting disadvantaged groups, and avoiding adverse impacts.
Participants reported that they left the workshop feeling invigorated and positive about the steps that could be taken to work cooperatively in challenging the cuts. The event was a great success and, through capacity building and knowledge sharing, the diverse practitioners involved could consider the most strategic options for minimising the impacts of the cuts on their constituents.
The second event in this series will take place on 2 March 2012. It will be a seminar for a wider audience including legal practitioners, NGOs, trade unions, academics and others. Speakers will include Michael O’Flaherty the Chief Commissioner of the NI Human Rights Commission; Louise Whitfield, a solicitor who has taken several cases on the cuts in England; Mark McEvoy, a local barrister; and a panel discussion with Law Centre NI, Children’s Law Centre and the Public Law Project to discuss the NGO perspective. If you would like to attend this event, please contact firstname.lastname@example.org or telephone 028 9044 6201.